Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. 05CR8970
MORRISON , J.
On November 14, 2005, 17-year-old defendant Reginald Larue Baker was charged in an amended complaint with two counts of resisting an executive officer (Pen. Code, § 69; further undesignated statutory references are to the Penal Code), assault with a deadly weapon by means likely to produce great bodily injury (§ 245, subd. (a)(1)), two counts of possession of a prohibited object while confined in an institution or camp administered by the Youth Authority (Welf. & Inst. Code, § 1001.5, subd. (a)), assault on a peace officer (§ 245, subd. (c)), and battery by gassing (Welf. & Inst. Code, § 1768.85, subd. (a)). It was also alleged that defendant had a prior conviction for a serious or violent felony within the meaning of the “Three Strikes” law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and that the assault with a deadly weapon by means likely to produce great bodily injury “was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members” (§ 186.22, subd. (b)(1)). The amended complaint was filed in criminal court pursuant to section 707, subdivision (d) of the Welfare and Institutions Code.
On December 23, 2005, defense counsel expressed doubt as to defendant’s competency to stand trial. The trial court suspended criminal proceedings and appointed Dr. Patricia White “to examine [defendant] and investigate his mental competency to stand trial pursuant to . . . [s]ection 1368, et. seq., . . .”
Dr. White interviewed defendant for over an hour and reviewed 85 pages of medical and disciplinary records. Based upon the foregoing, Dr. White concluded “with reasonable medical certainty that [defendant] [was] [p]resently [s]ane and [m]entally competent to [s]tand [t]rial.” She observed that defendant “presented as a calm, articulate, emotionally subdued, intelligent teenager who answered questions in fair detail and in a relevant and coherent fashion[,]” and she “found no evidence of delusional thinking or a thought disorder of any kind.” Although she found defendant exhibited “the signs and symptoms of a severe type of Personality disorder,” she concluded “this psychiatric disorder does not impair his competency to stand trial.”
At a February 9, 2006, competency hearing, the parties submitted on Dr. White’s report. After considering the report, the trial court found defendant mentally competent to stand trial and reinstated criminal proceedings.
On March 16, 2006, defendant entered a plea of guilty pursuant to People v. West (1970) 3 Cal.3d 595, to assault with a deadly weapon by means likely to produce great bodily injury, assault on a peace officer and battery by gassing and admitted the prior strike allegation in exchange for a stipulated sentence of 10 years “at 80 percent” and dismissal of the remaining charges and gang enhancement allegation with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
Defendant was sentenced in accordance with his plea to an aggregate term of 10 years in prison, consisting of six years (the low term, doubled) for assault on a peace officer, a consecutive two years (one-third the middle term, doubled) for assault with a deadly weapon by means likely to produce great bodily injury and a consecutive two years (one-third the middle term, doubled) for battery by gassing, with no credit for time served. The trial court imposed a $2,000 restitution fine (§ 1202.4) and a $2,000 parole revocation fine (§ 1202.45) and ordered defendant to provide samples for the state DNA database (§ 296).
Defendant appeals. He did not obtain a certificate of probable cause. (§ 1237.5.)
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.)
Defendant filed a supplemental brief contending (1) defense counsel committed “grave error” by ignoring defendant’s request to seek “a 90-day observation, at a mental health facility, prior to any further criminal proceedings being resolved” and by advising him “against having a jury decide [his] competency to stand trial[,]” (2) the trial court erred by failing to select and appoint two or three doctors to evaluate him in accordance with section 1027, subdivision (a) and (3) the trial court erred by relying upon Dr. White’s findings because “([i]) There was no comprehensive testing done to determine an accurate diagnosis. ([ii]) [Defendant has] no proper education or training concerning trial court strategy, California laws, or [knowledge of his] rights under these laws.” ([iii]) Dr. White’s “diagnosis” was inconsistent with those of other doctors who evaluated defendant. He argues these “issues” were “unfair to” him and “should have been addressed by [his] attorney, and were not.” Accordingly, he requests to withdraw his plea, to be appointed counsel and to “have a comprehensive mental health evaluation done.”
As defendant appears to acknowledge, these contentions, if successful, would require withdrawal of his plea and cannot be raised without a certificate of probable cause (§ 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099; People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)
In any case, defendant’s contentions fail on the merits. Competency hearings are governed by section 1369, which provides in pertinent part: “A trial by court or jury of the question of mental competence shall proceed in the following order: [¶] (a) The court shall appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant. . . . The examining psychiatrist[] or licensed psychologist[] shall evaluate the nature of the defendant’s mental disorder, if any, the defendant’s ability or inability to understand the nature of the criminal proceedings or assist counsel in the conduct of a defense in a rational manner as a result of a mental disorder and, if within the scope of their licenses and appropriate to their opinions, whether or not treatment with antipsychotic medication is medically appropriate for the defendant and whether antipsychotic medication is likely to restore the defendant to mental competence.” The trial court’s finding on the issue of competency cannot be disturbed if there is any substantial and credible evidence in the record to support the finding. (People v. Campbell (1976) 63 Cal.App.3d 599, 608.)
The trial court followed the procedures outlined in section 1369, and the trial court’s finding that defendant was competent to stand trial was supported by substantial evidence.
Defendant cites no authority for his assertion that defense counsel erred by failing to “seek a 90-day observation[] at a mental health facility.” Pursuant to section 1369, the trial court was required to “appoint a psychiatrist or licensed psychologist, and any other expert the court may deem appropriate, to examine the defendant.” The court complied with this requirement by appointing Dr. White. While section 1369 provides that “[t]he court may order [a] developmentally disabled defendant . . . be confined for examination in a residential facility or state hospital[,]” defendant does not contend nor does the record suggest he is developmentally disabled. Defense counsel was not derelict in failing to request an alternative procedure not specified in the statute.
Nor was defense counsel ineffective when he advised defendant “against having a jury decide [his] competency.” The right to a jury trial in a competency proceeding is statutory, not constitutional, and may be waived by defense counsel even over the defendant’s objection. (People v. Masterson (1994) 8 Cal.4th 965, 974.) Defense counsel was not derelict in simply advising defendant to waive a jury trial on the issue of his competency.
Citing section 1027, subdivision (a), defendant argues the trial court erred by failing to appoint more than one doctor to evaluate him. Section 1027, subdivision (a) applies when a defendant pleads guilty by reason of insanity, and thus, is inapplicable here. As previously discussed, the trial court was required to appoint “a psychiatrist or licensed psychologist” and did so here. (§ 1369.)
Finally, the trial court did not err in relying on Dr. White’s findings, which were based on her evaluation of defendant and review of his medical and disciplinary records. Contrary to defendant’s assertion, Dr. White’s determination that defendant was competent to stand trial did not conflict with the diagnoses of other doctors. Rather, Dr. White concluded the existence of “a severe type of Personality Disorder” did “not impair [defendant’s] competency to stand trial.” The absence of “comprehensive testing” does not render her findings unreliable. That defendant lacks any formal legal training is irrelevant to the determination of his competency to stand trial.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND , P.J., ROBIE , J.